Supervisors Minutes January 23, 2013

Westfall Township, Matamoras, PA
January 23, 2013

The Westfall Township Board of Supervisors held a workshop meeting on Wednesday, January 23, 2013 at 7:00 pm at the Township Building on Delaware Drive and LaBarr Lane, Westfall Township.

Those present were Chairman, Robert Ewbank; Vice-Chairman, Paul Fischer; Supervisors, Raymond Banach and Larry Flansburg; Solicitor, Robert Bernathy and Secretary, Lisa Green. Also present were Roadmaster, William Schneider; Zoning Officer, Michael Rendleman; Rob Llewellyn, Beth Brelje, John Dalton and Debra Banach. Supervisor, Robert Melvin was not present.

AGENDA: The agenda was approved on a motion by Supervisor Banach. Motion is seconded by Supervisor Flansburg and carried with all in favor.



Review Zoning as per Signage: Supervisor Banach mentioned that Home Depot would like an off premise sign and he was under the impression it was not allowed, although it looks like the zoning ordinance says in one place that it is not allowed and in another it is. Mike Rendleman said Home Depot did not ask for an off premise sign. They asked for a 50 foot sign on their lot and there is already a 65 foot sign on their lot, stating that off premise signs are not allowed. However there is no reason they cannot advertise on an existing Billboard. Supervisor Flansburg said he’s been in touch with Cindy from Home Depot and with Debbie from their legal department and their problem is the trees block the sign that they have already and that once someone turns onto Reuben Bell Drive they miss Home Depot and have to turn around on residential property. They would like a sign that tells people where to turn in and they are going to send information but it has not been received yet. Mr. Rendleman said they have a directional sign on their property that says “Home Depot Turn Here” at the entrance to their driveway. Supervisor Flansburg said what they would like is a sign close to Reuben Bell Drive or the intersection. Solicitor Bernathy questioned Mr. Rendleman if he agreed that people were missing the sign and going past Home Depot. Mr. Rendleman said he hasn’t had a complaint since they installed the directional sign. Further stating that he does not know why they can’t go before PennDOT and get a directional sign such as the Riverview Inn has on Route 6 & 209. Mr. Rendleman said if the supervisors change the zoning ordinance that applies to everybody in the Township. Solicitor Bernathy said he has to advise the supervisors that it would be a fundamental change to the zoning ordinance and that most municipalities prohibit off premise signs. Supervisor Flansburg questioned what was easier a variance or an amendment to the zoning ordinance. Solicitor Bernathy said a variance is based on hardship and that’s not easy to get. Solicitor Bernathy advised that you have to consider the impact a zoning change will have. Mr. Rendleman said the sign ordinance has issues in several different areas. For example there is a matrix of signs that are allowed and yet two pages later it says it is not allowed. Mr. Rendleman said this creates a mechanism that is not easy to control. Discussion was held about Phantom Fireworks. Mr. Rendleman said they did not come in to put the purple logo on the building. Supervisor Flansburg suggested tabling this item until he receives the information from Home Depot; however he wanted to mention that he has received phone calls from a church group about the billboard sign by the elementary school that has the woman in the bikini advertising for Dr. Buckley. Some people are finding it offensive. Solicitor Bernathy questioned if it was obscene. It is not. Solicitor Bernathy said we have to be careful about regulating content. Further discussion followed regarding the sign section of the zoning ordinance. Solicitor Bernathy suggested reaching out to Charlie Schmehl the draftsman of the ordinance.

Martin Luther King Day: Supervisor Banach said he doesn’t understand why the Township doesn’t give this holiday to the employees because banks and post office are closed. Mrs. Green said the township employees get 12 vacation days per year. Mr. Schneider said the highway department would probably still work. Supervisor Flansburg questioned how the day was on the holiday. Mrs. Green said it was quiet but she found work to do, stating that half the municipalities take the holiday off and half do not. Chairman Ewbank said he knows Matamoras takes it as a holiday because their street department was not out collecting garbage. The board decided to make it a township holiday and amend the employee policy manual. This item will be added to the February 5, 2013 meeting agenda.


Transaction Tax: Solicitor Bernathy said going back to September 4, 2012 we had on the agenda a proposed tax. He did legal research and confirmed that research with the Pennsylvania State Association of Township Supervisors for purposes of considering a tax which would provide for the issuance of a transaction tax on fireworks specifically, that would also apply to perhaps cigarettes, which could be discussed. Specifically this transaction tax would be on fireworks to include the purchase, sale, loan, pledge, gifts, transfer, delivery, or other disposition of any fireworks within the Township and that would apply to anyone engaged in that activity. This has been provided for us through the Local Tax Enabling Act which specifically describes a transaction tax. At that time Solicitor Bernathy prepared a hybrid ordinance which was an Amusement/ Transaction Tax Ordinance and the Amusement Tax was enacted and the Transaction Tax was tabled. At this time the supervisors have asked to revisit the transaction tax. Fireworks would include any combustible or explosive composition or any substance or combination of substances or any article prepared for the purpose of producing a visible or audible effect by combustion, explosion or detonation. That is a definition that will be part of the ordinance. The supervisors had discussed the actual transaction and the tax that would be proposed would be a .05% on each transaction. There are provisions in the ordinance for penalties as there would be for any other ordinance, there are provisions for enforcement of the ordinance and provisions for the responsibilities of the owners and operators of these establishments. The ordinance provides for civil penalties and he finds that type of conduct as unlawful. Solicitor Bernathy said those are at times boilerplate to all ordinances and added that this has been confirmed by the Pennsylvania State Association of Township Supervisors. Solicitor Bernathy continued by stating that with the amusement tax there was case law found in Pennsylvania where other jurisdictions and municipalities passed amusement taxes. With this situation there is no law on point however PSATS has made it clear that there is nothing prohibiting the Township from doing this. Solicitor Bernathy had a meeting with a representative from Phantom fireworks who wanted to discuss this proposed ordinance which was tabled back in October, and in the end they are recognizing the Township’s authority to enact such a transaction tax, understanding that it would be .05%. They want to work with the Township and made it clear that they also wanted to explore a number of other options in addition to that, which would include having property of which they would supervise personnel in the detonation of fireworks. They have also suggested as they have done and other municipalities that off-duty police officers would be hired as security. Solicitor Bernathy said again they are coming in good faith and he cannot say it is not going to be opposed because there was opposition to the amusement tax. Solicitor Bernathy thinks the number could be well over $100,000 if cigarettes are taxed as well.

Supervisor Flansburg questioned if what Solicitor Bernathy saying is that they would like to work with us and we would work with them. Solicitor Bernathy said yes that is what he’s saying and this is now the next step. This ordinance will be added to the next meeting agenda for purposes of advertising for public hearing. Solicitor Bernathy questioned what the board wanted to do regarding the cigarettes, stating this is not a sales tax this is a transaction tax that is allowable under the Local Tax Enabling Act however most municipalities have not used it. Supervisor Banach questioned if this transaction tax is unique to businesses in Westfall Township wondering if we placed a transaction tax on cigarettes would we also have the tax on lumber or tattoos. Supervisor Flansburg said what he believes Supervisor Banach is asking is can it be a transaction tax based on all businesses in Westfall Township so that we are not picking on one business. Discussion followed regarding the definition of the transaction tax and who it would apply to. Supervisor Banach suggested doing a separate ordinance for fireworks and cigarettes.

Supervisor Flansburg suggested inviting the cigarettes stores to a meeting to get their input. Solicitor Bernathy said as the record would indicate there was opposition by Phantom Fireworks and they have now reconsidered and said they wanted to be a good neighbor. Chairman Ewbank asked if there was a definition of fireworks and if it would apply to somebody selling sparklers down the street. Solicitor Bernathy said there is it would be any combustible or explosive composition or any substance or combination of substances or any article for the purposes of producing a visible or audible affects by combustion explosion or detonation. Further stating this is not applicable to sparklers.

Beth Brelje questioned if there was a law that said you could not tax cigarettes. Solicitor Bernathy said he is not aware of that but he will research it. Supervisor Banach questioned if this would apply only to cigarettes or to all tobacco products. Solicitor Bernathy said it would apply to all tobacco products.

Supervisor Flansburg said people that are going to hold quilting convention at the Best Western questioned how they go about paying the Amusement tax. Solicitor Bernathy said the ordinance provides a reporting requirement for those that were holding the quilting show. Vice-chairman Fischer said that Best Western just had a gun show and the ordinance went into effect on January 4, 2013 said that was applicable to them. Supervisor Banach suggested giving the registration forms to the businesses. Mrs. Green will take care of that. The transaction tax will be added to the February 5, 2013 meeting agenda.

2013 TAN: Solicitor Bernathy said that our Treasurer, Scott Myer had requested that Solicitor Bernathy have a Tax Anticipation Note ready in the event the Township needed it, however in Mr. Myer’s opinion he does not feel we need that at this time. Solicitor Bernathy said Mr. Myer thought the TAN would be like a line of credit in that we would not have to pay interest unless we drew on the money but that is not the way this loan was set up. Supervisor Flansburg said that Mr. Myer contacted him today and that he thought that since we would be paying interest on the money until April and paying a cost of $1000 to close the loan that was highway robbery. Mr. Myer said Milford Borough received a TAN for $150 from Wayne Bank. Supervisor Flansburg said Mr. Myer thought we had gone too far in the loan process and that we had to take it now. Solicitor Bernathy said absolutely not the Township does not have to take it and that when he first contacted the Dime Banks attorney he told him he was not sure it was even needed that we were just doing it on a precautionary basis. Adding that if Mr. Myer says it is not necessary then we will not take. Supervisor Banach suggested shopping around next year. Further discussion was held.

PSATS Convention April 21 – 24, 2013: Mrs. Green said the deadline for early registration is this Friday, January 25, 2013 and that she checked with Supervisor Melvin who is not able to go. Solicitor Bernathy suggested one of the board members attending. Supervisor Flansburg said Mrs. Green could put his name down on the registration form. Someone will attend.

Mr. Rendleman said after a cursory review of the zoning ordinance he does not see any reason why Home Depot cannot put up an off premise sign in the C-2 zone and it meets the other requirements of the ordinance. Solicitor Bernathy said that’s how he read it too. Mr. Rendleman said however there is another sign on the Zitone’s Property.


Township Roads: Bill Schneider said he has taken a tour of the Township roads with Supervisor Banach and Supervisor Melvin and showed them some of the areas of concern, stating that we have to prioritize some of the issues. One of the worst is the wall on Heaters Hill Road. It will be a problem if that collapses. He has pictures of the different areas, some of which were fixed such as the wash outs at the bottom of Heaters Hill and Bluestone Blvd., and some areas will need a lot more work. Possibly DEP and the Conservation District will need to get involved. Al Handy our former engineer had done a report several years ago and a lot of the work estimated was for the township to do themselves. The turnaround at the end of River Road in Mill Rift is starting to collapse. Mr. Schneider said if they can get the okay they could take the barriers back and fill that area with pipe and stone. Discussion was held regarding plow blades that were used in one area of Mill Rift. The one project for the Heaters Hill culvert pipe was fixed already and funded by FEMA along with the Decker Lane project. Supervisor Flansburg questioned if Mr. Schneider had a rough idea on the cost to fix the bottom of Heaters Hill. Mr. Schneider did not, however he said they could fix what’s there in place. However the DEP and the Conservation District need to get involved to find out the permitting requirements because there is a stream involved. Supervisor Flansburg said he felt they should prioritize the things they can do as opposed to those projects they need to hire someone for. Chairman Ewbank said the report from Al handy was done five years ago and the cost was $300,000 then, questioning what it would be today. Supervisor Banach suggested Mr. Schneider complete an action plan and pick the worst projects that need to get fixed first and get a legal opinion and the proper permitting and possibly get a grant through the Conservation District. Discussion was held on the projects that Mr. Handy reported on back in 2007. One project has been completed and the other is in process. Supervisor Flansburg questioned if you would increase the size of the pipes in fixing the projects. Mr. Schneider said if you increase the size of the pipes you need engineering therefore they will stay with the same size. Supervisor Banach questioned making the gravel part of Pond Drive seasonal. Mr. Schneider said if the property there ever gets developed the whole road would need to be brought up to Township specifications. Supervisor Banach is going to speak with the Conservation District on Monday and commented that we really need to start fixing the areas of concern because it is a liability issue.

Chairman Ewbank said for anyone interested they should take a ride around Cummins Hill Road to see the work that the road crew has been doing.

Mr. Schneider said the board should note that there are about seven telephone poles that need to be moved by Orange & Rockland that are too close to the road. He believes the township needs to send a letter to O & R. However the electric company will probably move the poles but the cable company takes forever.

Discussion was held regarding guide rails in town. Mr. Schneider said they have some guide rail at the shop.

Complaint re: Lot 40 Keystone Park: Mr. Schneider said he went down to take a look at the property and the homeowner showed him where the problem was, but this really isn’t a road issue. This is the low lying property and the road belongs to Milford Township. Discussion followed. Solicitor Bernathy stated that this is a preexisting condition and there is no liability on the part of the township. That needs to be relayed to them kindly.


Docket Review: Mr. Schneider said this came up during his road tour with Supervisor Melvin. The information provided by Mr. Schneider explains why the docket approval was reduced from 825,000 gpd to 375,000 gpd. Mr. Schneider said the gallonage was increased to 825,000 gpd for the Katz development and because Milford and Matamoras wanted to hook up. However the Project was reduced and Milford and Matamoras decided not to hook up therefore the gallonage was lost. Supervisor Flansburg questioned if they could get back to the 825,000 gpd. Discussion followed as to whether there was enough for the senior housing project and whether or not there would be enough if Milford decided to hook up. Mr. Schneider said if the authority was sold and it went bankrupt the sewer plant would fall back to the Township. Solicitor Bernathy confirmed that. Vice-chairman Fischer questioned if there was enough for the entire borough of Milford. Discussion followed. Supervisor Banach questioned what benefit Westfall Township residents would have it the sewer authority expanded. Solicitor Bernathy said it would add value to the municipality. Mr. Schneider said the tax payers do not have for the Authority it’s paid for by user fees. Further discussion followed.



Municipal Authority Land Development: Solicitor Bernathy said the Supervisors have a recommendation from Planning to approve the land development subject to the following conditions: 1) Review comments from Pike County Planning Commission 2) Address the details for the building as it relates to gas 3) Comments from the fire department regarding the gravel driveway and access regarding the structures. Solicitor Bernathy stated that the NPDES permit has been approved. The supervisors agreed that the Municipal Authority’s engineer did not need to be in attendance at the meeting. This item will be added to the February 5, 2013 meeting agenda.

EXECUTIVE SESSION: Called at 8:27 pm for personnel and possible litigation.

Adjournment: Meeting adjourned at 10:12 pm on a motion by Supervisor Banach, seconded by Supervisor Flansburg. Motion carried with all in favor.

Respectfully submitted,

Lisa A. Green, Secretary